Keaton v. Hamilton

• Decision Date: 01 April 1915
• Docket Number: No. 17082.,17082.
• Citation: 264 Mo. 564,175 S.W. 967
• Parties: KEATON v. HAMILTON et al.
• Court: Missouri Supreme Court

175 S.W. 967

264 Mo. 564

KEATON v. HAMILTON et al.

No. 17082.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by W. C. Keaton against Paul Hamilton and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Suit instituted in the circuit court for New Madrid county, July 13, 1910, by petition, to ascertain and determine the title to all that part of section 7 of township 24 of range 13 lying west of Little river in New Madrid county. The petition included Paul Hamilton, Albert M. Wiles, and William P. Richards, the respondents in this appeal, as defendants. It stated that the land was wild and uncultivated, and not in the actual possession of any one. The cause was transferred by change of venue to the circuit court for Stoddard county, where it was tried without a jury during the March term, and on April 27, 1911, and at the September term, the court entered its judgment declaring the title to be in said defendants, from which plaintiff took this appeal.

The first paragraph of the answer is as follows:

"Come now the defendants in the above-entitled cause, leave of court first having been obtained, and for answer to plaintiff's petition herein deny each and every allegation therein contained except claiming to be the owner of the lands involved, and pray judgment."

It then proceeds in separate paragraphs and as distinct defenses to claim title as follows: (1) By adverse possession under color and claim of title for more than 10 years. (2) By the lapse of 30 years without payment of taxes, and adverse possession for one year as provided in section 1884, Revised Statutes 1909. (3) Estoppel by laches in failing to pay taxes for more than 30 years, while defendants have paid taxes for "many years," and drained and made other valuable improvements on said, land. (4) Under a sheriff's sale for taxes by the sheriff of New Madrid county, and the lapse of more than 3, years since its execution until the bringing of this suit.

The land is a part of the swamp and overflowed lands granted by the United States to the state of Missouri by the a& of Congress approved September 28, 1850 (chapter 84, 9 Stat. 519), and by the state of Missouri to Stoddard county by act of the General Assembly approved February 23, 1853 (Laws of Mo. 1852-53, p. 108).

Plaintiff introduced in evidence an order of the county court for Stoddard county appointing Alfred Eltzroth a special commissioner to make certain patents, as follows:

"Whereas an order of compromise has this day been made by this court with Lewis M. Ringer and others, who purchased swamp lands at the sale made by the sheriff of Stoddard county, Mo., at the September term, A. D. 1868, of the circuit court of said county, on a judgment and execution in favor of Lewis M Ringer and against said county, now, therefore, in order to carry out the provisions of said order of compromise in good faith, it is ordered by the court that Alfred Eltzroth be and he is hereby made, constituted, and appointed special commissioner, for and on behalf of said county of Stoddard, to make, execute, acknowledge, and deliver to said parties mentioned in said order of compromise, letters patents for the lands alluded to in said order according to the provisions therein set forth."

Also a patent duly acknowledged as follows:

"State of Missouri, County of Stoddard — ss.:

"To All to Whom These Presents shall Come — Greeting: Whereas, Lewis M. Ringer of Stoddard county, state of Missouri, made full payment to the said county of Stoddard for the following described lands: All west of river of section 7, township 24, range 13-125 acres. [Here follows a description of other lands.] Containing in the aggregate one thousand three hundred and thirty-one & 25/100 (1,331.25) acres according to the official plat of the survey of said lands returned to the General Land Office by the surveyor general, which said tracts have been purchased by the said Lewis M. Ringer: Now, know ye, that the said county of Stoddard in consideration of the premises and in conformity with the laws of said state of Missouri in such cases made and provided have given, granted, bargained, sold and conveyed, and by these presents do give, grant, bargain, sell and convey, unto the said Lewis M. Ringer and to his heirs and assigns forever the above described lands granted ay the government of the United States to the state of Missouri and by said state of Missouri to said county of Stoddard. To have and to hold the above described lands with all the rights, privileges, immunities and appurtenances thereto belonging unto the said Lewis M. Ringer and to his heirs and assigns forever.

"In testimony whereof, I, Alfred Eltzroth, special commissioner, duly appointed by the county court of said Stoddard county to sell and dispose of the above described lands belonging to the said county of Stoddard for and in behalf of said county have caused these letters to be made patent. Given under my hand and seal as commissioner aforesaid at Bloomfield in said county, this 6th day of May, 1869.

"Alfred Eltzroth, Special Commissioner."

Also quitclaim deed dated June 28, 1909, from the widow and heirs of Lew is M. Ringer, who died in Spokane, Wash., in March of the same year, to plaintiff. Also a quitclaim deed dated April 6, 1909, from P. W. Kimball and W. A. Harvey to plaintiff.

The defendants introduced patent dated August 24, 1875, from the state of Missouri to New Madrid county, granting the lands in question. Also a patent dated May 25, 1899, from New Madrid county to John H. Himmelberger, conveying the same land. Also deed from Himmelberger and wife to Chas. M. Smith, dated June 21, 1900. Also deed from Chas. M. Smith and wife to Richard T. Allison dated December 27, 1902, and a deed from Ora Allison and others, trustees under the will of Richard T. Allison, deceased, dated December 6, 1906, conveying this, with a large quantity of other land (aggregating 1,150 acres) in sections 18, 19, and 20 in the same township and range, to the defendant Paul M. Hamilton. Also deed from the widow of Allison dated December 1, 1906, purporting to convey the same land to the same grantee. Also deeds from defendant Hamilton and wife dated December 4, 1906, to defendants Wiles and Richards, conveying to each an undivided fifth of all the lands last described.

Defendants next offered deed from the sheriff of New Madrid county to Charles M. Smith, dated June 5, 1890, purporting to convey the interest of "L. M. Ringer" in the same lands in suit under a judgment for taxes rendered September 20, 1889, in the circuit court of New Madrid county for delinquent taxes of 1884-1887 in the amount of $9.35, and costs amounting to $15.70. The record of this suit was in evidence, showing that the judgment was rendered by default against L. M. Ringer, in a suit naming the defendant by the same initials only, and that notice was given of the suit by publication only, in the same name.

The defendants also introduced the order of the county court of Stoddard county made at a special term held in April, 1869, appointing Eltzroth special commissioner to execute and deliver for and on behalf of said county the patent in evidence and others growing out of the same transaction. This order is the same that was before the court in Simpson v. Stoddard County, 173 Mo. 421, 73 S. W. 700, and is fully set forth in the opinion in that case. It is therefore unnecessary to incumber this opinion with a copy.

Ringer removed from Stoddard county to Eugene City, Or., in 1869, where he lived two years. He then went back to Stoddard county and remained about one year. In the summer of 1875 he moved with his family to Whitman county, Wash., where he continued to reside up to the time of his death. While he lived in Stoddard county he was sheriff three terms. Neither he, nor any one claiming under or through him, unless it may be said that these defendants so claim, ever paid any taxes on this property from the time he left the state, so far as is shown by the evidence, and it is affirmatively stated in the testimony of Mr. Smith, the purchaser at the tax sale, that he had the books examined covering 15 years before that time and found the taxes that had accrued during all that period unpaid. The taxes from and including 1884 were recovered in the judgment under which he purchased, leaving previous taxes unpaid. Mr. Smith paid the taxes accruing subsequently to those sued for, to and including 1902, when he sold the land; and there is no question as to their subsequent payment by those claiming through him.

In 1905 and 1906 a drainage district was organized, including about 36 acres of this land south of the railroad, and in 1909 ditches had been dug which drained the water from it. Before this the water had stood on it in winter from one to two feet deep. In December, 1909, the defendants made a contract for clearing about 36 acres so drained for $10 per acre, and it was subsequently cleared and fenced and a six-room house and log barn built on it. In 1907 Mr. Hamilton sold about $350 worth of timber, a part of which was taken from this land. This he states was the last timber he sold. He also used it for pasture in connection with the other land, but the record is entirely silent as to the dates or extent to which this was done. The whole tract seems to have been timber land.

At the time Mr. Smith bought the land there was a tract of 40 or 50 acres fenced and in cultivation in section 19, which is still an independent clearing, occupied by tenants who have raised crops there continuously. No use was made of the other land in connection with this.

The plaintiff bought the land for cash from the Ringer heirs, paying them $75 for the 125-acre tract in controversy.

In rebuttal the plaintiff introduced in evidence a petition in ejectment filed June 23, 1910, in a cause wherein h...